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2016 DIGILAW 1929 (HP)

Brahmi Devi v. Bavita Devi

2016-09-08

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. 1. This Regular Second Appeal has been instituted against judgment and decree dated 7.5.2015 rendered by the learned Additional District Judge, Ghumarwin, District Bilaspur, Himachal Pradesh in Civil Appeal No. 80/13 of 2014. 2. "Key facts" necessary for the adjudication of the present appeal are that appellants-plaintiffs (hereinafter referred to as 'plaintiffs' for convenience sake) filed a suit for declaration and for permanent prohibitory injunction against the respondent-defendant (hereinafter referred to as 'defendant' for convenience sake). According to the averments made in the plaint, plaintiffs were owners-in-possession to the extent of 5/6 shares measuring 9-19 Bigha compromised in Khasra Nos. 113, 187, 191, 206, 229 Kita-5 Khata/Khatauni No. 25/31 situate in village Talwara, Pargna Tiun, Tehsil Ghumarwin, District Bilaspur, on the basis of natural succession after the death of Shankar being class-1 legal heirs. Declaration was sought to the effect that mutation No. 529 dated 16.3.1985 regarding the estate of deceased Shankar attested in favour of deceased husband of defendant on the basis of some illegal document and subsequent revenue entries on the basis of said mutation were wrong, illegal, null and void. Consequential relief of permanent prohibitory injunction to restrain the defendant from dispossessing the plaintiffs from the suit land, alienating, creating charge or changing the nature of the suit land was also prayed for. In the alternative, the plaintiffs had sought possession of the suit land in case they were dispossessed from suit land during the pendency of the suit. It was prayed that plaintiff No. 1 was widow and plaintiffs Nos. 2 to 5 were the daughters of deceased Shankar. Defendant was widow of deceased Vijay Kumar, who was the brother of plaintiffs Nos. 2 to 5 and only son of plaintiff No. 1 and deceased Shankar. Shankar was owner of suit land. He had died intestate on 11.3.1984 and they being class-1 legal heirs of deceased Shankar had inherited the suit land to the extent of 5/6 shares measuring 9-19 Bigha. Husband of defendant died on 30.8.2005 and after his death defendant on 10.7.2006 had threatened to dispose off the suit land claiming that she was the only successor to the suit land after the death of her husband. Plaintiffs came to know that mutation No. 529 had been attested in favour of husband of defendant on the basis of some document dated 23.2.1984. Plaintiffs came to know that mutation No. 529 had been attested in favour of husband of defendant on the basis of some document dated 23.2.1984. The mutation was alleged to be illegal, wrong, null and void as no Will was ever executed by deceased Shankar. 3. Suit was contested by the defendant. She pleaded that after the death of her husband Vijay Kumar, she and plaintiff No. 1 were co-owners in joint possession of the suit land to the extent of half share each because Vijay Kumar was the sole owner in possession of the suit land on the basis of Will duly executed in his favour by Late Shankar on 23.2.1984. 4. Plaintiffs filed replication. Issues were framed by the learned Civil Judge (Junior Division) on 22.7.2010. He dismissed suit on 31.10.2014. Plaintiffs filed an appeal before the learned Additional District Judge, Ghumarwin. He dismissed the appeal on 7.5.2015. Hence, this Regular Second Appeal. 5. The present Regular Second Appeal was admitted on 28.6.2016, on the following substantial questions of law: “1. Whether the impugned mutation No. 529 dated 16.3.85 qua estate of Shankar Dass is apparently wrong and illegal, attested purportedly on the basis of will, where as there is no Will supporting the mutation hence, judgments & decrees passed by both the learned Courts below stand vitiated? 2. Whether in the absence of any legal document conveying the title to one and all natural heirs are entitled for succession to the estate of their father contrary findings returned by both the courts below stands vitiated? 3. Whether without the production and proof of the alleged Will, inference of exclusion of natural heirs is untenable?” 6. Mr. Surinder Saklani, Advocate, on the basis of substantial questions of law framed has vehemently argued that mutation No. 529 dated 16.3.85 was illegal. Defendant neither produced nor proved Will dated 23.2.1984, on the basis of which Mutation No. 529 dated 16.3.1984 was attested. 7. Mr. Umesh Kanwar, Advocate, has supported the judgments and decrees passed by the learned Courts below. 8. I have heard the learned counsel for the parties and also gone through the record carefully. 9. Since all the substantial questions of law are interconnected and interlinked, the same are taken together for determination to avoid repetition of discussion of evidence. 10. Plaintiff has appeared as PW-1. She has led her evidence by filing affidavit Ext. 8. I have heard the learned counsel for the parties and also gone through the record carefully. 9. Since all the substantial questions of law are interconnected and interlinked, the same are taken together for determination to avoid repetition of discussion of evidence. 10. Plaintiff has appeared as PW-1. She has led her evidence by filing affidavit Ext. PW-1/A. She has proved copy of Jamabandi Ext. PW-1/B, copy of mutation Ext. PW-1/C and death certificate of Vijay Kumar Ext. PW-1/D. In her cross-examination, she deposed that Vijay Kumar died seven years ago. She feigned ignorance that after the death of her husband, mutation of his property was entered in favour of Vijay Kumar on 16.3.1985. She was not aware about the Will executed by her husband in favour of her son Vijay Kumar on 23.2.1984. She denied the suggestion that she was called to Kuthera by Tehsildar Ghumarwin regarding inheritance of property of her husband. She admitted that in the year 1984 Sh. Bali Ram was President of her Gram Panchayat. She expressed inability to state if no objection was raised by her daughters Satya Devi and Fullan Devi before Assistant Collector 2nd Grade, qua attestation of impugned mutation in favour of her son. She admitted that she never raised any objection regarding the inheritance of the property of her husband till the death of her son. She admitted that she filed the present suit when defendant threatened to dispose of the suit land. She denied that she had concealed the original Will. 11. PW-2 Smt. Neelam Kumari has corroborated the statement of PW-1. 12. PW-3 Brij Lal has deposed by way of affidavit Ext. PW-3/A that on 20.8.2006, the defendant came to village Talwara alongwith her relatives and expressed her intention to dispose of her share in the suit land. In his cross-examination, he deposed that Shankar was his uncle. He feigned ignorance qua the fact that mutation of the estate of Late Shankar was attested by Assistant Collector 2nd Grade at Kuthera on 6.6.1984 and during mutation proceedings, plaintiff, her daughters and her son Vijay Kumar used to appear before Assistant Collector 2nd Grade. He feigned ignorance about any Will executed by Shankar. 13. Defendant has appeared as DW-1. She has led her evidence by filing affidavit Ext. DW-1/A. She was married to Vijay Kumar in 2005. At that time, sisters of Vijay Kumar were already married. He feigned ignorance about any Will executed by Shankar. 13. Defendant has appeared as DW-1. She has led her evidence by filing affidavit Ext. DW-1/A. She was married to Vijay Kumar in 2005. At that time, sisters of Vijay Kumar were already married. Her husband died three months after her marriage. She had seen the Will in favour of her husband. Names of her mother-in-law and her husband were mentioned in the Will. She denied the suggestion that no will was ever executed by Late Shankar in favour of her late husband. 14. Narayan Singh has appeared as DW-2. He deposed hat he was Field Kanungo of Kuthera Circle in the year 1984-85 and at that time, Lokender Singh Chauhan was Tehsildar, Ghumarwin. Mutation No. 529 regarding inheritance of Shankar was entered by Patwari Bhag Singh. Mutation was compared by him after scrutinizing the Will. He has admitted his signatures on mutation Ext. DW-2/A. 15. Longu Ram has appeared as DW-3. He deposed that he was Numberdar of Village Talwara and Late Shankar and Late Vijay were known to him. Will was produced by Vijay Kumar for mutation before Tehsildar. He admitted his signatures on the mutation. 16. DW-4 Hemraj has produced the original mutation. 17. DW-5 Sh. Lokender Singh Chauhan, has deposed that he was Naib Tehsildar Jhandutta from November 1984 to October, 1985. Mutation No. 529 regarding inheritance of Late Shankar was attested by him on the basis of an unregistered Will on 16.3.1985 (six. 16.2.1985). Will was produced by wife of deceased, Smt. Brahmi Devi, who was identified by Numberdar Sh. Longu Ram. Will was executed by Shankar in favour of his son Vijay Kumar. Will was read over to the plaintiff No. 1 and at that time, daughters of Brahmi Devi (plaintiff) namely Satya and Fullan Devi were also present. He proved the certified copy of mutation (Ext. DW-2/A/Ext. PW-1/D). Mutation was attested by him at Kuthera. He has called all the legal heirs of Shankar but only Brahmi Devi (plaintiff No. 1) and daughters Satya Devi and Fullan Devi appeared before him. 18. Will is dated 23.2.1984. DW-2 Narayan Singh, Field Kanungo and DW-5 Lokender Singh Chauhan specifically testified that they had seen the Will of Shankar executed in favour of Vijay Kumar. DW-2 Narayan Singh has testified that mutation No. 529 regarding inheritance of Shankar was entered by Patwari Bhag Singh. 18. Will is dated 23.2.1984. DW-2 Narayan Singh, Field Kanungo and DW-5 Lokender Singh Chauhan specifically testified that they had seen the Will of Shankar executed in favour of Vijay Kumar. DW-2 Narayan Singh has testified that mutation No. 529 regarding inheritance of Shankar was entered by Patwari Bhag Singh. DW-5 Lokender Singh Chauhan as noticed herein above stated that he attested the mutation No. 529 on the basis of unregistered Will on 16.3.1985 (sic. 16.2.1985) executed by Shankar. Contents of Will were also read over to Brahmi Devi. Brahmi Devi and her daughters, Satya and Fullan were also present at the time of attestation of the mutation. Unregistered Will was produced on 6.6.1984 before the Assistant Collector 2nd Grade. Matter was adjourned to 2.2.1985 for hearing objections and arguments. Legal heirs of late Shankar Smt. Satya Devi and Smt. Fullan Devi appeared and gave their no objection for attestation of mutation. Thereafter, on 16.2.1985, plaintiff Brahmi Devi again appeared before Assistant Collector 2nd Grade for attestation of mutation and gave her no objection for attestation of mutation. It is in these circumstances, mutation was attested on 16.3.1985 by PW-5 Lokender Singh Chauhan. Defendant has also moved an application under Section 65 of Indian Evidence Act, to prove Will. As noticed above, DW-2 Narayan Singh and DW-5 Lokender Singh Chauhan, have stated that the Will of deceased Shankar was seen by them and mutation No. 529 was attested on 16.3.1985 on the basis of Will executed by Shankar in favour of his son. Both of them are public servants. Their testimony has rightly been accepted by the learned Courts below. Bavita Devi (defendant) never came in possession of the Will. She lost her husband three months after the marriage. Courts below have rightly come to the conclusion that the Will always remained in the custody of plaintiff No. 1 Brahmi Devi. It was not the case of the plaintiffs that the Will was the outcome of fraud or undue influence. Plaintiff No. 1 has admitted in her statement that she has challenged inheritance after the death of her son. 19. The substantial questions of law are answered accordingly. 20. Accordingly, in view of the discussion and analysis made hereinabove, the present appeal is devoid of merit and the same is dismissed. Pending applications, if any, also stand disposed of. No costs.